If your tree falls during a storm and damages your neighbor’s property, are you liable? The answer is… maybe.

Hurricane Gustav, and to a lesser extent, Hurricane Ike, wreaked havoc on the trees of Baton Rouge. Setting aside the lack of electricity and exhausting heat that came after the storms, the famous trees of Baton Rouge were the topic of conversation. It seemed that if you didn’t have trees on your property or street, then trees were falling on someone else’s property. What’s your responsibility if a tree from your property falls on your neighbor’s property and causes damage?

It is generally an accepted fact that if a tree falls during a hurricane, it’s categorized as an Act of God. An Act of God is a concept similar to the civilian doctrine of “force majeure.” It is defined as a superior or irresistible force that is, in the legal sense, sufficient to excuse a defendant’s neglect of duty and relieve him of liability to a plaintiff. Allen v. Simon, 2004-04 ( La. App. 3^rd Cir. 12/08/04), 888 So.2d 1140. Once a plaintiff has proven the elements necessary to recover for damage caused by a thing in another's custody, the owner of the thing can avoid liability if he shows that the harm was caused by an Act of God. Greene v. Fox Crossing, Inc., 32,774 (La.App.2^nd Cir. 3/1/00), 754 So.2d 339.

Easy enough, right? If your tree falls on someone else’s property during a hurricane, you can invoke the Act of God defense to avoid liability. Yes, but if the plaintiff can prove a lack of maintenance or diseased tree, then you may be held liable. In Brown v. Williams, 36,863 (La. App. 2^nd Cir. 7/31/03), 850 So.2d 1116, the defendants acknowledged that during their custody of a large oak tree, which fell on the plaintiff’s house during a storm that generated a tornado, they did not perform any maintenance of the tree whatsoever. They did not take the step of painting over the spot where a large limb had broken off 10 years earlier, and apparently had not even pruned the branches of the tree. The defendants accepted the benefits of the tree, but refused to provide minimal care for the tree or to assess the health of the tree, despite the risk of significant harm to their neighbors or to themselves if the tree fell due to disease or weather conditions. The appellate court refused to overturn the trial court, which held that the defendants failed to establish that the plaintiff’s property damage was due directly and exclusively to natural forces that could not have been prevented in the exercise of reasonable care. The defendants should have known of the tree’s defective, diseased condition in the exercise of reasonable care, and could have prevented the incident with ordinary maintenance. Id. at 1123.

Subsequent cases, however, have declined to extend this holding to trees that are overgrown and placed too close to a brick wall. In Hoerner v. Title, 2007-CA-0588 (La. App. 4^th Cir. 9/26/07), 968 So.2d 217, the appellate court noted that based on the evidence in the trial record, they could not find that the defendant’s trees were defective for lack of maintenance or location. The trial court was presented with conflicting evidence on the issue of maintenance; therefore the appellate court could not say their decision was unreasonable. The complaints of the plaintiffs over the years primarily concerned the overgrowth of the defendant’s trees into the yard. However, pictures taken after the storm showed that the trees themselves were blown over and into the brick wall, causing bricks to break off and damage the pool and other property of the plaintiffs. It was not the overgrowth that did the damage. Id. at 220. As such, the defendant was entitled to the Act of God defense.

Finally, even if you are successful in asserting an Act of God defense, while you are absolved of the responsibility for the damage that tree occasioned, you may be still responsible for removing that tree from your neighbor’s property. In Allen v. Simon, the plaintiff sued his neighbor, seeking reimbursement expenses for removal of a tree that had fallen on his property during a hurricane; the tree fell on the plaintiff’s greenhouse, roof and swimming pool. Id. at 1141. The defendant asserted the affirmative defense of Act of God. The trial court granted the defendant’s motion for summary judgment and dismissed the case. On appeal, the appellate court held that an Act of God, while precluding recovery for property damage, did not necessarily absolve the defendant of the responsibility to remove the fallen tree from the plaintiff’s property. Id. at 1145. While an Act of God may have caused the tree to fall on the plaintiff’s property, the defendant’s decision to leave his tree on the plaintiff’s property was not related to an Act of God. The hurricane did not divest the defendant of his ownership of the tree. Id. The matter was remanded back to the trial court for further proceedings.

So what have we learned today? Treat your trees with the respect they so richly deserve. Although an affirmative defense is available to you should a hurricane knock a tree onto your neighbor’s property, it is not iron-clad. Take reasonable steps to ensure your trees are healthy, and photograph your nurturing for proof. You will be rewarded come litigation time.

Remember that these legal principles may change and vary widely in their application to specific factual circumstances. You should consult with counsel about your individual circumstances. For further information regarding these issues, contact Robert W. Scheffy, Jr.